UAPA – A Video Dossier: Media Collective, Arun Ferreira &Vernon Gonsalves

Video by Media Collective, Article by Arun Ferreira and Vernon Fernandes

Fifty Years of Unreasonable Restrictions

Arun Ferreira & Vernon Gonsalves 

Soon after its adoption, the Constitution of India was amended in 1951. At the time several progressive judgements[i] by the Judiciary held that laws which curb fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme of cases. The First Amendment, countered this by amending Article 19 to add the word ‘reasonable’ before restrictions and to add ‘public order’ as being one more ground for abridging Fundamental Rights.

The evolution of UAPA[ii] has to be seen in the background of this gradual but steady constriction of Article 19 which guarantees the fundamental freedoms of expression, assembly, association, etc.

The UAPA, 1967

The next major step in the abridgement of freedom of expression, assembly and association occurred in shape of the Sixteenth Amendment in 1963. Further ‘reasonable restrictions in the interest of the sovereignty and integrity of India’ were amended to Article 19 (2). This Amendment occurred in the immediate wake of the Indian Army’s defeat in the Sino-Indian War, as well as the threat posed by DMK’s contesting elections in Tamil Nadu with secession from India being part of their manifesto. It was in this background that UAPA was enacted on 30th December, 1967- to satisfy the need of the Indian State to declare associations that sought secession from India as ‘unlawful’. In this way, UAPA 1967 gave powers to the central government to impose all-India bans on associations. The process of banning associations could simply be done by the government announcing them as ‘unlawful’ and hence banned (Section 3). Though the original 1967 Act too had provisions for a tribunal to review or to hear an appeal against the ban, this remained a mere farce as seen in the case of SIMI.

2004 Amendment

In 2004, amidst public outcry against the misuse of POTA (Prevention of Terrorism Act), the government repealed POTA but majorly amended the 1967 version of UAPA at the same time. The repeal of POTA was an election promise of the then newly elected Congress government. The amended UAPA made substantial changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’, ‘terrorist organisation’ from the repealed POTA, and also introduced the concept of a ‘terrorist gang’. In fact Chapters IV, V and VI dealing with ‘Punishment for Terrorist Activities’, ‘Forfeiture of proceeds of Terrorism’ and ‘Terrorist Organisations’ respectively were heavily borrowed from the repealed POTA. The Schedule to the POTA Act of ‘Terrorist Organisations’ too was incorporated into UAPA verbatim. A sunset clause that was earlier part of so-called anti-terror acts like TADA and POTA was done away with.

Even if one were to buy the ‘desperate times call for desperate measures’ logic, where a restriction to fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA. In fact the justification to the inclusion of a sunset clause in previous extra ordinary acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation.

2008 and 2012 Amendments

On 17 December 2008, another amendment of the UAPA was moved and adopted following the attack by armed gunmen in Mumbai on 26 November 2008. More provisions similar to POTA and TADA regarding maximum period in Police custody, incarceration without chargesheet and restrictions on bail were incorporated into UAPA. The 2012 amendments to the Act further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.

What is a Crime and who is a criminal?

Like earlier anti-terror laws such as TADA and POTA, UAPA too, criminalises Ideology and Association. By virtue of declaring an organisation ‘unlawful’ or/and ‘terrorist’ and banning them these Acts have de facto criminalised their ideologies. Hence mere possession of any literature of such an organisation or even upholding an ideology common to that organisation in the absence of any violent act is construed as an offence. On the other hand, mere membership or association with such an organisation too becomes an offence. It is by this logic, that very often, organisations advocating the rights of a certain minority community or that of oppressed sections are easily labelled as fronts of a proscribed organisation under the Schedule of the Act. Their activists or members get arrested and remain in prison for years, denied bail.

 Repeal of UAPA

If UAPA 1967 made anti-secession law a permanent requirement, UAPA 2004 made anti-terror law permanent. After it effectively substituted POTA in 2004, the UAPA has been used by all law enforcement agencies throughout the country as the foremost[iii] anti-terror law. The repeal of POTA was indeed an eye-wash.

In the absence of any sunset clause or provisions for mandatory periodic review, the repeal of UAPA will depend on a mass movement. However, merely mentioning its misuse or low conviction rate may eventually lead to another eyewash, as in 2004. A movement[iv] against UAPA should hence clearly stand for its repeal and that of all other state anti-terror laws with similar provisions.

Draconian provisions of UAPA in a nutshell

  • The Act introduces a vague definition of terrorism to encompass a wide range of non-violent political activity including political protest.
  • The Act empowers the government to declare an organisation as ‘terrorist’ and ban it. Mere membership of such a proscribed organisation itself becomes a criminal offence.
  • The Act allows detention without filing of a chargesheet for up to 180 days, police custody can be up to 30 days.
  • The Act creates a strong presumption against bail and Anticipatory Bail is out of the question. It creates a presumption of guilt for terrorism offenses merely based on the evidence allegedly seized.
  • The Act authorizes the creation of special courts, with wide discretion to hold in-camera proceedings (closed-door hearings) and use secret witnesses.
  • The Act contains no sunset clause and provisions for mandatory periodic review.

 Notes 

[i] Romesh Thapar versus the State of Madras (1950); V.G. Row versus the State of Madras (1950); and the A.K. Gopalan case (1950).

[ii] A more detailed history and analysis of the Unlawful Activities (Prevention) Act is available in The Terror of Law: UAPA and the Myth published by Coordination of Democratic Rights Organizations (CDRO), April 2012.

[iii] Many states have their out anti terror laws such as Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Chhattisgarh Special Public Security Act, 2005 (CSPSA), Jammu and Kashmir Public Safety Act, 1978; Andhra Pradesh Public Security Act, 1992, etc. These local laws are sometimes as draconian if not more, and are used by the State prosecution agencies in addition to UAPA.

[iv] Other than Civil Liberty and Democratic Rights organizations throughout the country an umbrella organization called ‘Peoples’ Movement against UAPA’ has been initiated since January 2014.

3 thoughts on “UAPA – A Video Dossier: Media Collective, Arun Ferreira &Vernon Gonsalves

  1. Dinesh Shah

    Governments world over use Such authorities or laws to persecute unwanted people or harass those whom, they are uncomfortable with. This in countries like ours ,where police are a law unto themselves, and ordinary people are not aware of their rights, use these to suppress any type of free thinking and democratic agitation or action. Dr.Saibaba. Was helping such people who were marked as naxalites by the police to make their task of policing easy.
    Here comes the role of Saibaba or late Mahashweta Devi , to help poor and deprived people whose attraction to naxal activities is due to the prospect of getting some rights and employment.
    We must oppose he sentence to Saibaba as it is also against SC guidelines not to equate activists who,are simply found to be sympathetic to naxals ; not involved in their activities.

  2. venukmwpb

    Really worth careful attention of anyone who takes democracy seriously.
    However, let us remind ourselves that UAPA’s amended version in 2004 was virtually about giving more teeth to the repealed previous draconian legislations POTA( brought by BJP-led NDA Govt ) and TADA .
    We now hear knowledgeable people open speaking of ‘grand alliances’ of Centrist and Left forces to oppose BJP- Sanghi communal fascism .But sections of intelligentsia need to be reminded time and again that virtually that all these ‘secular and democratic’ forces and parties sitting in the Parliament were not only happy with the idea of seriously compromising citizens’ right to express dissent and even criminalizing such expressions , but these parties themselves put in place the amended UAPA 2004 and two subsequent amendments in 2009 and 2012. Congress-led UPA-1 & 11 did precisely that, either in the name of extending co-operation and logistic support to the US-led ‘Global War on Terror’ or in order to eliminate once and for all the so called ‘Maoists’ threat’ (which was also perceived by the PM Dr Manmohansingh as the ‘biggest internal threat’ and more or less in similar ways by all ruling and opposition parties then, including the Leftists who had representation there. )

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